DUI law ruled unconstitutional

TimesDispatch.com ^ | today | Matthew Bakarat

[Rodney King]

McLEAN -- A Fairfax County judge has ruled that key components of Virginia's drunken-driving laws are unconstitutional, citing an obscure, decades-old U.S. Supreme Court decision that could prompt similar challenges nationwide.

Virginia's law is unconstitutional because it presumes that an individual with a blood-alcohol content of 0.08 or higher is intoxicated, denying a defendant's right to a presumption of innocence, Judge Ian O'Flaherty ruled in dismissing charges against at least two alleged drunken drivers last month.

As a district judge, O'Flaherty's rulings do not establish any formal precedent, but word of the constitutional argument is spreading quickly among the defense bar. Every state has similar presumptions about intoxication at a 0.08 blood-alcohol level, so defense lawyers across the nation are likely to make similar arguments....

[CSM]

"The problem with DUI laws is that they make the state of the driver's *mind* a crime rather than making the state of the driver's *driving* a crime. It's absurd that a person who kills someone in an accident gets a relative slap on the wrist if he's driving while exhausted or driving while sick, but if his blood alcohol is a certain level, he gets the book thrown at him regardless of *how he was actually driving*.
Reckless driving and killing a person while driving recklessly should be crimes. But we put too much emphasis on *why* a person was driving recklessly, and DUI laws don't even care whether a person was driving recklessly at all. What's in a person's blood at the time of an actual crime should be either irrelevant or at most one among several possible aggravating factors in sentence determination (and even then it should be *proved beyond a reasonable doubt* that the person's blood content was actually related to the person's reckless driving). Blood content should never be a crime in and of itself, whether while driving or not. I've never understood why driving while intoxicated is considered so much more reprehensible than for instance driving while tired, especially considering the fact that many more accidents are due to fatigue rather than due to intoxication. It's senseless."

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Your entire post was well worth repeating. I would also like to add that due to this societal situation that many forms of dangerous driving are no longer considered dangerous. It is almost to the point that the only type of driving considered "dangerous" is driving with any alcohol in ones system. The key question to ask, has these shifts provided a safer road system? I say no, in fact I'd say you mix that with insurance and people just don't have any concept how dangerous that 2 ton piece of metal can be.......

[IamConservative]

Another fair approach would be to make driving with any BAC period illegal. It is not arbitrary and does not presume guilt.

[CSM]

"Invariably the cops pull over those they suspect as being loaded. They don't pull over cars that are not acting funny"

You really are naive. Ever hear the phrase "fishing" between midnight and 2:00 am? Ever hear of the police tailgating a car to cause eratic speeds, then pulling them over for eratic speeds? How about marking tires in a parking lot of a watering hole?

You don't actually think the revenue enhancers aren't going to enhance revenue, do ya?

[CSM]

First you say, "Reckless driving is defined as driving indifferently to or disregardful of the consequences." Then you say, "If you pour 4 beers down your gullet and get behind the wheel, then no matter how carefully and straight you are driving, IMO you are driving recklessly." ******************** Websters says: One entry found for careful. Main Entry: care·ful Pronunciation: -f&l Function: adjective Inflected Form(s): care·ful·ler; care·ful·lest 1 archaic a : SOLICITOUS, ANXIOUS b : filling with care or solicitude 2 : exercising or taking care 3 a : marked by attentive concern and solicitude b : marked by wary caution or prudence c : marked by painstaking effort to avoid errors or omissions -- often used with of or an infinitive - care·ful·ly /-f(&-)lE/ adverb ******************** So, you think that someone driving carefully after 4 beers (undefined time) is driving indifferently to or disregarding consequences. Why don't you say that someone who drinks 4 beers can not drive carefully. Your statements above point to an emotionally driven response void of logic. Would you agree to laws that mandate that after 3 moving violations a driver is given a felony? If not, why not? Isn't any moving violation considered wreckless driving?

[Fierce Allegiance]

That thing says I can drink a 6-pack in 2 hours and still be legal.

[Rodney King]

Your statements above point to an emotionally driven response void of logic.

That pretty much nails it, as you will see as you keep going through the thread.

[CSM]

"You're wrong. A guy driving 30 miles an hour over the speed limit who is also cutting off drivers is going to spend the night in the drunk tank whether he blows a .07 or a .00. The police would ticket that guy for "reckless driving." His punishment is likely to be the same as the guy who blows a .08."

You really are naive. This statement led me to your profile and now I understand your lack of knowledge in this area. I hope you remain so blessed that you don't find yourself educated in these manners.

[CSM]

What do you think of the judicial rulings that made abortion a law? Do you think all laws are equally reasonable?

[TChris]

It seems that the FSTs (Field Sobriety Tests), used by LEOs to establish probable cause for the arrest, also expose intoxication separately from the BAC levels. The statutes may need to be reworded, but a BAC of 0.08 is rarely the sole basis for determining intoxication in court.

The fact that a driver can't walk a straight line, say the alphabet, speak without slurring, pass a horizontal gaze nystagmus test, etc., all contribute to build a pretty strong case. The .08 BAC, with all its supporting studies, is just another piece of empirical evidence against the drunk driver.

[CSM]

"PARDON me,..."

No need, you were found not guilty! ;-)

Many people are not as educated as you are in these matters and they are unaware of the skewed data that results from such unbalanced legal systems. Thanks for your testimonial.

[raygun]

The Victims Impact Panel really shook me up. The whole thing really opened my eyes up. I'll never forget watching the movie "Days of Roses" as part of the legally mandated program. I also know that the recidivism rate is about 80%

The question was asked: "How can you prevent another arrest for drunken driving?" I responded, "don't drink before driving." While that may minimmize one's risk, the ONLY way to actually prevent another such arrest: quit drinking.

I have not quit drinking. But I will not stand before a judge concerning alchohol again.

The thing that I took away from that legally required program was a sense of why do I drink, and why do I drink as much as I do when I drink? Secondly, what is wrong with feeling the way I do and why does that need to be "enhanced" or "diminished"? The latter are societal questions and gap mere alchohol consumption.

The movie "Days of Roses" w/Jack Lemmon is a movie that I most heartedly recommend viewing by everybody. It should be legally required viewing to be a person. It showed me where I was, who I was, and just how long things had been brewing (ha ha ha ha - bad joke).

I will be earnestly be praying for your mental well-being, and that the Comforter will be audible to you. I know one thing: this world is nothing but a veil of tears, and there's no hope but that Jesus saves (John 3:15; 6:47). I pray that you will be able to overcome your grief and see that light. I didn't come to the Lord because of what happened, I'm guilty of what I did despite my faith.

All that notwithstanding, there's nothing I can say (nor do) to fill that hole in your heart. But Jesus can perform miracles, and that will be my prayer: that its the Lord's will for to be healed; you've suffered a most grievous loss.

[CSM]

"Liberals love controlling every aspect of human behavior. Liberals have no faith at all in their fellow citizens. They want rules and regulations for everything that could ever happen. That's a police state. And I'm appalled at how many people here think it's a good thing."

Same goes for the Righteous Right. Both are equally dangerous to a Free Republic, both want to use government guns to enforce their chosen morality.

"We don't punish our sex offenders and predators. But we have police prowling for speeders in artificially low speed zones and drivers having a couple of beers? Insanity, pure and simple."

Proof that it is about revenue, not upholding societal standards.

[musanon]

Repelling Domestic Enemies

Address:http://www.freerepublic.com/focus/f-bloggers/1464792/posts

[MPJackal]

"It is a cash cow that nation-wide brings in billions".


I would like to see proof of that.

[jjmcgo]

Might just be good luck. I have been pulled over twice in New Jersey on bogus "tail-light" violations (ooops, seems to be working now) because NJ cops apparently believe that vans with Penna. plates are involved in drug trafficking.
"What have you got in the car, John? Mind if I have a look?"
"Hair-trigger spring-loaded bear traps and hydrochloric acid bottles. Interior light's not working. Have fun, officer."

[jjmcgo]

Your daughter was killed by someone who was super drunk, not by someone who had two beers. It sounds as if you are associating those who have drunk responsibly (under the limit) with those who are far in excess of the limit.
Perhaps this illustration will help you understand what people are saying here:
While the police officer was fattening the public coffers by stopping every tenth car to see if someone might blow a sliver over 0.08, that roaring drunk who killed your daugher drove right by the pulled-over cruiser.
Instead of watching for obvious violaters, the cops are walking a narrow line along the Fourth Amendment and frequestly stepping over it, as they did when they twice pulled me over for non-working tail lights that seemed to have magically fixed themselves when I got out and said which one isn't working officer?
Basically, we're all getting the driving-while-black experience as a result of adding so many police officers over the last decade.

[SweetCaroline]

It sounds as if you are associating those who have drunk responsibly (under the limit) with those who are far in excess of the limit.

No I'm not, that is not why I posted on this thread, perhaps I did not word it right, it is not something easy to talk about, but, if it should help one person, it is worth it.

I am fully aware of what the police do, I've watched them wait outside the bars that I've worked at and I'm against it myself.

I've been a bartender most of my working life, I'm also an ex-Alcoholic. My posting was a warning, for people to monitor themselves. This young man didn't set out to kill my daughter, it was only to cash his check and have a few beers with his buddy's as he had for years.

As a bartender and a drunk, I know how easy it is to have one more. I know how friends will encourage someone to stay and have one more.

With this post I was hoping to let people understand the consequences of not following the warning bells in their head, to stop and leave. Sometimes lessons are better learned when those consequences effect someone they know.

[MamaTexan]

that says that a criminal defendant has a CONSTITUTIONAL right to a presumption of innocence.

It doesn't say it in the Constitution.

The Constitution is a positive law contract between the states and the federal government. It PROTECTS the natural, unalienable rights of the people, and enumerates a few Positive law rights in the Bill of Rights. Take the 2nd Amendment, for example. It not only acknowledges the peoples natural law right to self defense, it ALSO gives us a positive law right to a SPECIFIC means to do so...*arms*. Other than that, the Constitution has nothing to do with the People.

Natural law (or the laws of nature) are laws that existed in Nature before man had the concept of 'law'. The right to self defense of yourself or your property is no different that an animals right to survive and protect it's territory.

Natural law was in the Declaration of Independence as the Laws of Nature and natures God. This is because Natural law is also built on God's laws.

Here is a good explanation of 'presumption of innocence'.

Whether the government likes it or not, Natural law is ALWAYS superior to it's counterpart, man-made, or 'positive' law ...even the Founders said so.

"Religion is the basis and foundation of Government. It is the duty of every man to render to the Creator such homage.. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe."
James Madison 1785

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If men through fear, fraud or mistake, should in terms renounce and give up any essential natural right, the eternal law of reason and the great end of society, would absolutely vacate such renunciation; the right to freedom being the gift of God Almighty, it is not in the power of Man to alienate this gift, and voluntarily become a slave.
John Adams, Rights of the Colonists, 1772

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The fundamental source of all your errors, sophisms and false reasoning is a total ignorance of the natural rights of mankind. Were you once to become acquainted with these, you could never entertain a thought, that all men are not, by nature, entitled to a parity of privileges. You would be convinced, that natural liberty is a gift of the beneficent Creator to the whole human race, and that civil liberty is founded in that; and cannot be wrested from any people, without the most manifest violation of justice.
Alexander Hamilton, The Farmer Refuted, 1775